HKSAR v. CHOI KA LEONG AND ANOTHER

HCCC 174/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 174 OF 2017

-----------------

-----------------

---------------------------------

Transcript of the Audio Recording
of the Sentence in the above Case

---------------------------------

COURT:

Choi Ka-leong and Chan Ka-chun, you pleaded guilty on 22 May 2017 before the Eastern Magistracy to three counts of robbery, contrary to section 10 of the Theft Ordinance, Cap 210 and one count of attempted robbery, contrary to section 10 of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200.

You, Chan Ka-chun, have also pleaded guilty to one count of driving dangerously, contrary to section 37(1) of the Road Traffic Ordinance, Cap 374. You have been committed to this court for sentence.

The Summary of Facts was read out to you in court and you have both agreed that summary. That summary is as follows.

On 14 May 2016, in early hours of the morning, you both approached a lone female employee working in a 7-Eleven store in Sha Tin Pass Estate. You were disguised insofar as you wore surgical masks, sunglasses and caps which had been provided by, Chan Ka-chun. You, Chan, drove the two of you to the robbery and you also obtained two knives for use in the robbery. Your disguise in itself would have been frightening to a lady working on her own in a store, at that time of night. But Choi Ka-leong, you were holding one of these knives provided by Chan which would have been terrifying. The other of you then said “Robbery, take out all the money”.

There were two cash machines in the shop, each with $3,000 inside. One of you took the money from one of the cash machines and the lady gave the other of you the money from the other machine because she thought you would harm her. Choi, you also took a packet of cigarettes.

Nine days later, on 23 May 2016, you picked a similar time, in the very early hours of the morning, to rob a 7-Eleven store in Laguna Plaza, and once again, Chan, you drove the two of you to the location of the store.

This time, there were two female employees and you, Choi, entered the store wearing a surgical mask and gloves, brandishing a knife and you pointed that knife at one of the ladies and said “Robbery, take out all the money” which she did and she put it inside a bag you had brought with you for that purpose. You repeated that exercise with the other lady employee, both of whom were scared of you. In that robbery, you managed to steal $5,200.

On 29 May 2016, you carried out the same type of robbery once again on a lone employee within the 7-Eleven store at H Cube in Tsuen Wan. Chan drove you to the location and you, Choi, committed the robbery, disguised as before and once again brandishing a knife. This time, you stole $5,380.

It was only through good police work that you were identified soon after this last robbery and that you were kept under observation because you attempted once again to steal from a 7-Eleven store, this time in Electric Road, and the police, this time, were on to you. They followed the two of you from Tze Lok Estate, on 11 June 2016, to Electric Road.

They saw you, Choi, put on the mask and the gloves provided by Chan before entering the store at around 4 o’clock in the morning and they saw you with a bag in your hand. Once again, there was a single employee in the store. This time, it was a 60-year-old lady who you threatened with what she believed was a knife, and we now know it was a knife with an 11 centimetre blade. She was very scared by your demand for money and the only reason she did not give you any was because the police intervened and you ran away.

You were eventually caught and you had the good commonsense to admit your part then and in interview.

You, Chan, were waiting in the getaway car and you saw the arrest of Choi and so you tried to flee in your car but the way was blocked. Nevertheless, you did not stop. You crashed into a police vehicle which had a police driver inside and then you sped on and crashed into another police vehicle which also had a driver inside. That caused you to be out of control and that is why you hit the pillar, the traffic sign and the rubbish bin before your car came to a stop.

You were also sensible enough to admit your part in these robberies immediately. As both of you were caught red-handed, however, I do not find that particularly to either of your credit.

Choi, you are 23 years of age. You were 22 at the time that this offending took place and you have had a clear record and I have taken that into account. You were educated up to Form 4. That is actually unusual before me in this court; people usually have far less of an education.

You were employed at the time of this offending, although that employment was not as lucrative as your previous employment in the construction industry. You say that you lost your job and you were not able to tell your parents that you had been dismissed and, as a result, you started to borrow money from one financial institution after another and within a very short period of time, you say, that debt compounded to some $50,000 even though you had taken on two more jobs.

Mr Ip, on your behalf, has submitted to the court that it was this financial difficulty which caused you to agree to enter into this spree of offending. This is not an attractive argument. You had a family who clearly loved and supported you and have, since this offending, paid off your debts. I have read the letters in support and I know they have supported you since your arrest. No doubt they would have done so if you had been sensible enough to turn to them for help, but you did not, you turned to crime and you did not commit just one offence but a number of them.

Chan, you are 27 years of age. Older than Mr Choi and did have a clear record which I have also taken into account. You say you were self-employed at the time of this offending but you also lived with your parents.

Mr Tam, on your behalf, had submitted to the court that you too were in debt. There is no documentary support for that contention and I do not accept what has been said about you borrowing sums in excess of $15,000 a time from friends with no interest to be repaid, and then losing $100,000 in bad investments.

Both of you simply wanted to make what you thought was easy money at the expense of 7-Eleven. I have read the letters which you have submitted in support and it is clear, in all other respects, people think well of you. You are equally responsible for this offending. Indeed, if I were being ungenerous, I would say that you were the leader who was too cowardly to commit the offence himself. But I am going to give you the benefit of the doubt and treat your participation in the same way as that of Mr Choi.

Robbery is a very serious offence. The leading case remains Mo Kwong Sang v R [1981] 1 HKLR 610 where it was said that the appropriate sentence in cases of armed robbery, where the defendant carried a knife or other dangerous weapon which he displayed to his victim, would be one of 5 years’ imprisonment. That would be the case where there were no other aggravating features.

In this case, however, under Count 1, the defendants entered the 7-Eleven store on the Sha Tin Pass Estate together and whilst one of you brandished the knife, the witness said that the other of you demanded the money. In Count 1, as in Counts 2 and 3, you targeted 7-Eleven stores where there was either a lone female employee or two females, after you had carried out observations to ensure there were no customers present. It was, on all three occasions, the very early hours of the morning when, as human beings, we are at our most vulnerable, and you disguised yourselves which was also intimidating.

On Counts 2 and 3, I note that you, Mr Chan, did not enter the stores but waited and acted as a getaway driver. That was not your only role. It was you who provided the disguise and it was you who provided the weapon. I accept that no actual physical harm came to the ladies in this case but no doubt they would have been mentally scarred by your actions.

A further aggravating feature is that you carried out these robberies as a form of spree over several weeks, no doubt emboldened by your early success. Each and every one of them was well-planned and premeditated. Robberies of commercial premises such as 7-Eleven, which is open 24 hours a day to serve the community and is known to be staffed by lone employees who are often female, is to be deprecated. Preying on female staff in the middle of the night is cowardly and will not be condoned.

Choi and Chan, on Count 1, the appropriate starting point is 5 years and 6 months’ imprisonment. You will both receive the full one-third discount for your guilty pleas at the first opportunity and you will go to prison for 3 years and 8 months.

Choi and Chan, on Count 2, you are jointly responsible for the acts physically carried out by Choi and which you facilitated, Chan. Only one of you entered the shop on this occasion but you, Chan, provided the means to threaten the shop ladies and both of you shared in the spoils of this crime. The appropriate starting point is one of 5 years’ imprisonment.

You will both receive the full one-third discount for your pleas of guilty at the first opportunity and you will therefore both receive terms of imprisonment of 3 years and 4 months.

This offence occurred some nine days after the robbery you committed under Count 1, plenty of time to consider your position and actively plan to commit a further offence and select a target. As such, I consider that 3 months of this sentence should be served consecutively to that which you will serve under Count 1.

Choi and Chan, on Count 3, you are also jointly responsible for the acts carried out by Choi and which you facilitated, Chan. This offence occurred six days after that in Count 2. Only Choi entered the shop on this occasion but you, Chan, once again provided the means to threaten the shop ladies and both of you shared in the spoils of the crime. The appropriate starting point for this offence is also one of 5 years’ imprisonment.

You will both receive the full one-third discount for your pleas of guilty at the first opportunity and you will therefore receive terms of imprisonment of 3 years and 4 months.

This offence, as I said, occurred some six days after the robbery you committed under Count 2 and 15 days after the offence you committed under Count 1. By this stage, you had become thoroughly emboldened by your success and we know that this spree continued thereafter. It may not have stopped until you were caught.

As such, I consider that 3 months of this offence should be served consecutively to that which you will serve under Count 1 and Count 2.

Count 4 was one of attempted robbery. If it had not been for the diligence and professionalism of the police and the co-operation of the witnesses in this case, you may have continued robbing 7-Eleven stores in Hong Kong until caught.

The modus operandi was the same as you had exhibited previously under Counts 1, 2 and 3, but this time, your attempt was foiled and could not be carried out and I see no reason to alter the sentence which I have passed on you for the substantive offences. You certainly would have been successful if the police had not been there.

I consider that the correct starting point after trial, therefore, to be one of 5 years, reduced again to 3 years 4 months’ imprisonment for your early pleas of guilty, and I see no reason whatsoever as to why you should not serve 3 months of that sentence consecutively to that which you will serve on Counts 1, 2 and 3 above, as you had 13 days in which to contemplate this crime and to select a venue and a victim employee who, on this occasion, was a 60-year-old lady.

That makes a total of 4 years and 5 months’ imprisonment for you, Choi Ka-leong.

As for you, Chan Ka-chun, you will also face a count of dangerous driving under Count 5. This was committed as you attempted to flee the scene and you put other people’s lives at risk, people who put their own lives at risk, in the way of danger, in order to protect the public. In so doing, you damaged not only your car but those driven by the two police officers and you damaged public property, all of which will need to be replaced at public expense. It was sheer luck that no one was injured, including yourself.

I consider the appropriate starting point for sentence, after trial, to be 9 months. But you have sensibly pleaded guilty to this offence at the first opportunity and therefore you will receive the full one-third discount, reducing the sentence you will serve to 6 months.

Whilst this offence was committed at the same time as the offence under Count 4, it was a wholly separate action in your attempt to resist arrest which placed others and yourself at risk.

I consider you should serve 3 months of this sentence consecutive to that to be served by you under Counts 1, 2, 3 and 4, and so you will go to prison for 4 years and 8 months.

You will also be disqualified from driving for two years and if it is within my power to do so, that disqualification will not be given effect until the date of your release. It is my intention that you should be disqualified from driving for two years after the date of

your release from prison, and you will undertake a driving improvement course.